California's Teeming Prisons

Nearly 30,000 California prisoners are on hunger strike to protest various abuses, including the extensive use of solitary confinement. This strike is the latest reflection of just how broken the state's prison system is. In turn, the problems in California showcase the myriad messes that increasingly define American crime-control policy.

The disastrous state of California prisons two years ago compelled the federal courts to intervene. The Supreme Court ruled that the overcrowding had become so dire that it violated the Eighth Amendment, upholding a lower court order that the prison population be reduced. California Governor Jerry Brown, however, has been resistant to meeting the target of set by the courts (which require California to reduce its prison population to "only" 137.5 percent capacity). Declaring the problems in California prisons solved, Brown has issued a plan that flatly refuses to meet the targets. That proposal was again rejected by the Ninth Circuit. The hunger strike makes it clear that Brown's unilateral declaration of victory is, to put it mildly, premature.

While Brown's actions cannot be defended, it must be conceded that past policymakers and California's cumbersome institutional rules have created a policy quagmire with few good solutions. The current prison situation in California is a perfect storm created by two policies that have dominated recent American political life: mass incarceration and anti-tax mania.

In their new book Why Are So Many Americans in Prison?, Steven Raphael and Michael A. Stoll pinpoint key policy changes that have left us with the largest prison population among all other liberal democracies: limiting judicial discretion by setting determinate sentences, making it much more difficult for prisoners to qualify for parole; increasing the number of mandatory minimum sentences, and implementing laws that impose much harsher sentences for repeat offenders. California is particularly notorious for the latter, having passed a "three strikes and you're out" initiative that was applied to give a life sentence to a person convicted of stealing three golf clubs. (The Supreme Court ruled that this did not constitute cruel and unusual punishment.)

Making the problem even worse is that the largely bipartisan rush to put an increasing number of people (a greatly disproportionate number of them young men of color) in prison has been constrained by Republican anti-tax policies. Republicans like locking people up a lot more than they like raising taxes, and in California it requires supermajorities to raise taxes. As a result, it's clear that California is unwilling to build more prisons to accommodate increasing numbers of people with prison sentences. California's initiative system has proven particularly disastrous on this point, because increases in prison terms don't have to take trade-offs into account. Would the original "three strikes you're out" initiative have passed if it mandated specific tax increases or spending cuts to accommodate the increase in the prison population? Likely not—but a process that treats issues discretely didn't require such prioritization and created a huge unfunded drain on the state's coffers. The 2012 initiative cutting back on three strikes suggests that a majority of voters are beginning to realize that locking up large numbers of elderly criminals whether they pose any threat to public safety or not is not the best use of taxpayer money.

This contradiction is one reason the court order was justified and Brown was wrong to oppose it. If every last person being held in the California prison system is a major threat to public safety, than surely the money can be found to alleviate horrible prison conditions. If the money can't be found, then the least dangerous offenders should be released (and, in particular, there can be no justification for holding anyone convicted solely of nonviolent drug offenses under such conditions). Either way, the solution can't be the perpetuation of a humanitarian catastrophe.